The tightrope that the Human Rights Tribunal must walk as it decides whether the Bishop of Auckland has illegally discriminated against a gay man became dramatically evident in the Auckland District Court on Tuesday.

Bishop Philip Richardson spent forty minutes in the afternoon giving expert witness testimony in support of Bishop Ross Bay’s decision to refuse Gino Sisneros entry into the Diocese of Auckland’s ministry discernment programme.

In his evidence, Bishop Philip spelt out how the church makes its laws, and how the present marriage and ordination canons cannot be interpreted in a way that would allow gay ordination.

Such ordinations, he claimed, would only be possible if the General Synod decided to change the relevant canons.

After Bishop Philip had read his witness statement, he was cross-examined by Mr David Ryken, the plaintiff’s counsel – and then by Mr Rodger Haines, QC, the Chairperson of the Tribunal itself.

At one point Mr Haines asked whether Bishop Philip accepted that discrimination had taken place.

He freely acknowledged that in terms of the definition in the Act, it had.

What the defence is claiming, he said, is the exemption provided to religious organisations by the Bill of Rights Act.

Mr Haines also closely questioned the Bishop on the process of how doctrine came into being, and on the relationship of Scripture to formularies like the Prayer Book.

He then invited his fellow Tribunal member, Dr Huhana Hickey, to continue the examination.

But the minute she asked: Where in the Bible does Jesus Christ state that homosexuals have less spiritual significance than heterosexuals?...

The lead counsel for the defence, Mr Bruce Gray, QC, leapt to his feet.

He said that out of respect for the Tribunal and “a desire for transparency” he had allowed a series of questions that did not, in his view, comply with the Bill of Rights Act.

But the Tribunal had sailed “perilously close” to going beyond its remit under the Bill of Rights Act – which allows religious bodies to claim exemption from some civil rights obligations where these conflict with doctrine.

“That case for the defence,” he said, “is that there is a doctrine. The tribunal is entitled by its status under the Bill of Rights Act to satisfy itself that there is a doctrine.”

But when its questioning began “drilling into Scripture” and evaluating doctrine and the scriptural basis for that doctrine, it has “trespassed”, he said.

Mr Haines defended the tribunal questions. In order for it to assess whether the refusal to admit Mr Sisneros was a matter of doctrine or “established custom”, he said, it had to inquire about the decision-making that fixed the doctrine.

“What we are testing,” he said, “is whether what is put in front of us is doctrine. And it becomes quite difficult to test that without actually asking questions about doctrine. Where it comes from, the way it finds its way into formularies.”

Mr Gray stood firm: “This does have to be done in a Bill of Rights compliant manner. Doctrine has been claimed, documents have been produced. How much further may legitimately be pursued?”

With that, Mr Haines adjourned the hearing for the afternoon break – and the Tribunal did not resume the questioning after the break.

Inconsistency?

The morning session began with an Anglican priest from Dunedin telling the Human Rights Tribunal that his bishop had ordained him knowing he was gay and living with his partner.

The Reverend Juan Kinnear said he has been in an exclusive relationship for 25 years. He was ordained a priest by Bishop George Connor, in 2007. He was later relicensed as priest by the present Bishop of Dunedin.

Rev Kinnear told the tribunal that the fact he was licensed and in ministry in Dunedin was proof that the church made exceptions to its doctrinal position.

Bishop Ross Bay then took the stand, and he outlined the timeline of his discussions with Mr Sisneros.

He had interviewed Mr Sisneros in November 2010, and Mr Sisneros had “indicated that he understood that his relationship would prevent ordination at this point.”

He'd wanted to begin the process, nonetheless, and Bishop Ross had said he would seek advice about that.

But in March 2011 Judge Chris Harding, the Chancellor for the diocese of Waikato and Taranaki, had given a legal opinion which said that any bishop who proceeded with the ordination of a person in a same sex relationship did so at their peril.

Both the bishop’s decision to ordain a partnered gay person and the validity of the ordination itself could be challenged, even overturned, in a church court.

The only secure route to such ordination, Judge Harding had suggested, lay through a specific General Synod resolution.

In the absence of such a General Synod decision, Bishop Ross had come to the view that it would be pastorally irresponsible “to take someone down a path which I know to lead to a dead end.”

Bishop Philip’s view

In the afternoon, Bishop Philip Richardson took the stand.

He acknowledged that some partnered gay priests had been ordained.

But that was due to the “inconsistency” of a specific bishop, he said.

And he claimed that the position of the church as a whole on gay ordination “requires a conscious decision to change.”

“The church is currently engaged in processes that may or may not lead to a change in the doctrinal position of this church on these matters.

“Occasions of inconsistency such as the ordination of a person in a committed same-sex relationship by an individual bishop or the acquiescence, post-ordination, of same-sex relationships are just that; inconsistency.

“The status quo has not been changed, that change would require due process.”

In answer to a question from Mr Haines QC, he confirmed that, in the Anglican Church’s view, the new form of same-sex marriage recently ushered into law by the Marriage Amendment Act “is not a Christian form of marriage.”

He then proceeded to outline his own thinking about the rights of the state versus the church:

“My view is this:

“That the state has every right, indeed a responsibility, to define what is legal marriage.

“The church has every right to make submissions into any process which seeks to redefine the definition of legal marriage. But the church can only presume to be a voice in that process.

“So we made submissions, and we were a voice.

“It is, however, in my view, entirely the right and indeed the responsibility of the church to define its doctrine around what the nature of marriage is.

“And that’s the process that we’re engaged in reviewing and thinking again about now.”

The hearing is expected to finish today, with closing legal arguments.

Mr Ryken will present the plaintiff's arguments first, then Mr Gray and Professor Paul Rishworth, who is an authority on human rights law, will close for the defence. 

The tribunal's decision will be reserved.